The APC European Internet Rights Project

On
18 December 1998, the head of the Committee for Post and Telecommunications
(CPT) signed an ordinance under the new Telecom law entitled "Licensing
of telecommunication services". Part II of this document
said that the following year a general license should be issued
to, among others "4.INTERNET - Internet Service Providers."

The
apparently normal concern of the government to ensure high quality
services in fact concealed serious background issues.

Under
the Telecom law government officials were to be allowed access
to every document belonging to ISPs licensed under it. This could
obviously result in leaking of usernames, password, log files,
and other sensitive material. Indeed, it could lead to a serious
breach of the law on special surveillance, as the investigators
would not need a court order to examine personal information.
Knowledge of individuals’ usernames and passwords would allow
the police to read private mail without proper authority.

The
license fee was subject to a percentage of gross annual sales;
in certain cases this would mean an additional hidden tax of about
20% - 40% of profits. The CPT claimed that the license fee was
not "that high - 2.3 % of sales"; but with profits of
5 to 10 % of sales, this was effectively a sales tax of 23 -46%.

On
24 December, after learning about the new law, the chairman of
the Internet Society of Bulgaria (ISOC-Bulgaria), Veni Markovski,
sent an urgent fax to the chief of the CPT, warning that such
an order went against good practice on the Internet, but hoping
that this was perhaps just an oversight on the part of the chairman
of the CPT in terms of complying with European practice. Since
there was no response from the CPT, ISOC issued a press release
alerting people to the new ordinance.

On
30 December newspaper articles appeared in a number of Bulgarian
newspapers, under the headline "A Christmas "present"
for Internet users".

Early
in 1999, many more articles appeared in the media. Veni Markovski,
Dimitar Ganchev and Dimitar Kirov -(members of the Board of ISOC-)
gave several live interviews. One of them was a live 15 minute
prime time piece with one of the authors of the new Telecom law,
under which the ordinance was issued. After a month of CPT silence,
on 27 January an injunction was filed by ISOC and sent to the
Supreme Administrative court. The Supreme Administrative Court
is the only court with the power to reverse government decrees
and ordinances that contravene Bulgarian law European conventions
ratified by the Bulgarian Parliament.

According
to Mr. Markovski (a qualified lawyer), the ordinance contravened
Articles 2, 3, 7, 10 and 16, subsection 3, and Article 17 of the
Telecommunications Act; the "Sector Policy in Telecommunications"
adopted by decision N 570/1998 of the Council of Ministers; articles
34, 39, 40 and 41 of the Constitution of the Republic of Bulgaria
and Article 10 of the European Convention on Human Rights (the
right to freedom of expression); European Union directives and
recommendations relating to the Internet: Directive 97/13/EC,
Recommendation 3/97, as well as European Union principles relating
to telecommunications; and Article 84, subsection 3 of the Constitution
of the Republic of Bulgaria. The full text of the injunction can
be found at http://www.isoc.bg/kpd/index-eng.html.

The
reaction of ISOC was admittedly more instinctive than reasoned.
The fact that the head of the CPT (the equivalent of Ministry
of telecommunications) had decided to place restrictions on using
the Internet was so shocking that it provoked enormous opposition.
It also raised certain fears in some business quarters.

ISOC
was the only organization to confront and take action against
the government’s decision a fact which raises a number of important
issues in Bulgaria and worldwide.

ISPs
in Bulgaria had not been able to unite to protect their rights.
This was due in some part to cross-cultural differences but also
to a lack of self-confidence and a lack of belief in the ability
of a united to win.Only a non-governmental organization could
opposed the government; intervention by a business organization
would have been seen as merely protecting private commercial interests.

ISOC
was very lucky that several of the country’s foremost lawyers
were willing to work for free. It should be noted however, that.
the lawyers of the Helsinki human rights committee, for instance,
were not very hopeful of our chances of success. The situation
in Bulgaria was actually very favourable the efforts of ISOC.
The country was under the supervision of the Parliamentary Assembly
of the Council of Europe. Members of the European Parliament visited
Bulgaria twice a year to monitor Bulgaria’s progress in preparing
to join the EU. Many foreign heads of states made visits to Bulgaria,
including the German Chancellor Herr Shroeder and US President
Clinton.

In
January 1999 ISOC began holding regular press conferences, and
more than 300 articles were published in the next ten months.
Members of the ISOC Board took part in TV, radio and live talk
shows, making a number of appearances on national TV, to audiences
of about 60% of the population.

We
received strong international support from APC, ISOC, GILC and
other international organizations.

The
proposed licensing of ISPs would put an end to freedom of speech
on the Internet in Bulgaria. ISPs would be afraid to object to
unauthorized listening, for fear of losing their license. In Russia
later that year the so-called SORM-2 made it possible for the
FSS (formerly known as KGB) to monitor Internet traffic on ISP
servers via leased lines and root access (facilitated by ISPs
at their own expenses and without a court order).

In
June 1999, after two hearings, the Supreme court temporarily halted
the ministerial ordinance and gave hope to Internet users in Bulgaria.
In July ISOC decided to continue its fight, and accepted the support
of the "St. George's day" (Gergiovden) political movement.
this led to a great deal of media interest in August. Various
articles were published, among the best of which was the analysis
by the well-known Bulgarian journalist Dimitri Ivanov, available
at http://www.isoc.bg/kpd/news-sega-02-07-99-eng.html.

The
government agenda hidden behind the ordinance was:

to
gain political control of information

to
further its economic interests by granting licenses to ISPs
that complied with the system.

Some
members of the new government had demonstrated their desire to
control information about Bulgaria on the Internet in 1998. Ex-cabinet
member Mario Tagarinski said publicly that such control was necessary
to prevent misuse of terms such as "Bulgaria", etc.

The
CPT organized a public debate in September 1999 to try to justify
their motives in accepting the ordinance. They failed to provide
a strong defense against ISOC’s arguments, in particular the very
well prepared thesis by the chairman of the Committee of Bulgarian
emigrants in Sweden, Ivan Ivanov. Mr Ivanov had made a thorough
search of the papers, documents, recommendations and directives
of the European Union, the European Council, and the European
Commission.

In
the meantime, the court appointed a three-person expert group
to address questions raised by the case. Among them was Dr. Kiril
Boyanov, a well-known figure in IT, not only in Bulgaria, but
worldwide. The expert report examined questions on the nature
of the Internet, its relation to telecommunication services, etc.

In
October 1999 the main aims of ISOC were to recruit more supporters
and to exploit meetings of Bulgarian officials with foreign counterparts.
Thus we managed to ask the German Chancellor Shroeder for his
opinion on the licensing of ISPs. The recent German law on Telematic
services explicitly states that Internet services should free
of any licensing or registration restrictions. In a public meeting
at the Economic University in Sofia, Mr. Shroeder said without
hesitation that "licensing of ISPs cannot be justified on
economic or political grounds".

This
opinion was applauded by ISOC.

German
chancellor was the second politician to support us. The first
was the Bulgarian vice-president Todor Kavaldjiev. Mr Kavaldjiev
had a one-hour meeting with the chairman of ISOC in August 1999.
During this meeting the Bulgarian vice-president was very supportive
and his position was publicized in the Bulgarian press.

At
the beginning of November 1999 there were changes in the government.
Several key ministers were likely to be replaced, among them the
deputy Prime Minister responsible for telecommunications. President
Clinton was expected to visit Bulgaria on November 18, just a
few days after the next hearing of the ISOC case at the Supreme
Administrative court. ISOC-Bulgaria made it clear that they would
ask President Clinton about his views on licensing.

A
week before the hearing, however, a communiqué was suddenly released
by the Cabinet, ordering the chairman of the CPT to meet representatives
from ISOC and reach an out-of-court agreement to stop the proposed
licensing. This came as a complete surprise to ISOC, regardless
of rumours in the air.

Representatives
of ISOC and of the CPT, the State Telecommunications Commission
(equivalent of the FCC) along with the secretary of the "Gergiovden"
movement met for 3 days to negotiatie a solution. A joint statement
was drafted, setting out the case with solid arguments with which
the CPT could reply to any future critics. The CPT, however, sent
back a totally different document, which promoted licensing as
a good thing for Bulgaria.

We
refused to sign the document and four days before the trial we
announced that the CPT had not followed the recommendations of
the Bulgarian Prime-Minister and would not agree to withdraw the
proposed system of licensing. On the following day rumours spread
that the chairman of the CPT had in fact decided to change the
ordinance, moving Clause 4 from Part II (licensing) to Part III
(free services). Two days later, during the hearing, the CPT lawyers
brought a copy of the new ordinance to court. Seeing this, ISOC
decided to accept the government’s changes and withdrew their
case.

ISOC’s
reasons for withdrawing were:

the worst out-of-court agreement
is better than the best court decision.

we did not want to fight the
government until we could be sure they could not win

as the court did not have
to come to a decision, we would still have the option of going
back to the same court again. This would give ISOC more protection
against future government attempts to impose a system of licensing.

The
case resulted in more than just the fall of the proposed licensing
system:

ISOC
became the best-known organization in the country. We were approached
by a number of other organizations and individuals who had had
problems with the government.

The
Ministry of Telecommunications decided to consult experts not
only within their own departments, but also among IT professionals.

Members
of the Bulgarian Parliament approached ISOC to help them draft
the new "Computer crimes" chapter of the Criminal
Code.

Representatives
of ISOC were invited to join the Y2K committee.

Representatives
of ISOC were invited to support the National Council for Development
of IT.

The
Bulgarian President Peter Stoyanov decided to join the Internet
Society and became the first acting head of state - to become
a member of this international organization.

ISOC
managed to unite many different people, organizations and companies
in the interests of protecting their rights - even if this meant
suing their own government - in a just cause.